Final Order 1

Order Details: Copy  of Judgment
Pdf Text: (Judgment) 1 C. C. NO. 1114/PS/2018
Received on :- 06/03/2018
Registered on :- 06/03/2018
Decided on :- 01/01/2026
Duration :- 07 Y 09 M 26 D
Exh. :- 15
IN THE COURT OF THE JUDICIAL MAGISTRATE FIRST CLASS,
10th COURT, ANDHERI, MUMBAI.
(PRESIDED OVER BY S.G.AGRAWAL)
C. C. NO. 1114/PS/2018
CNR NO. MHMM19-002798-2018
J U D G M E N T
(u/Sec. 355 of Cr.P.C.)
(a) The serial number of the case. : C. C. No. 1114/PS/2018.
(b) The date of the commission of
the offence.
: 29/08/2016
(c) The name of the Informant. : The State (D.N.Nagar Police
Station in C.R.No. 561/2016)
(d) The name of the accused
person and their parentage
and residence;
: Bhushan Ashok Surve,
Age : 26 years,
R/o. R.No. 996, Azadnagar,
Andheri (W), Mumbai.
(e) The offence complained of : Under Section 279, 338, 304-A
of the Indian Penal Code r/w
134(a)(b), 180 of Motor
Vehicles Act.
(f) The plea of the accused and
their examination.
: Accused pleaded not guilty.
(g) The final order : Accused is acquitted.
-- 1 of 7 --
(Judgment) 2 C. C. NO. 1114/PS/2018
(h) The date of such order : 01/01/2026
(i) Brief statement of reasons : As recorded herein below.
Assistant Public Prosecutor : Shri. F. L. Shaikh.
The Ld. Advocate for accused : Shri. Shetty.
JUDGMENT
(Delivered on 01/01/2026)
Accused Bhushan Surve is being prosecuted for committing
death of Abdul Hai by his rash and negligent act of driving his vehicle
and also for leaving the spot of accident without providing the deceased
with medical assistance and also without informing the police
punishable under section 279, 338, 304-A of IPC and Section 134(a)(b)
of Motor Vehicles Act punishable under Section 180 of said Act.
2. The learned APP for the state has submitted all the
ingredients penal provisions with which accused is charged has been
made out from the evidence available on record and thus, he prayed to
convict the accused. As against this, the learned advocate for the
accused had submitted that there is no iota of evidence to show that
vehicle was driven at high speed. Referring to the depositions of the
witness he has submitted that they have not stated the manner in which
vehicle was driven rather they have stated that vehicle was driven at
high speed but, high speed by itself is not sufficient to hold the accused
guilty of driving the vehicle in rash or negligent manner. He has relied
upon Judgment of Honorable Delhi High Court in Rakesh Kumar Gupta
VS State pronounced in criminal revision petition number 988/2019.
He also cited the judgment of Honorable Bombay High Court in
criminal appeal number 1238/2012 in case of State of Maharashtra VS
-- 2 of 7 --
(Judgment) 3 C. C. NO. 1114/PS/2018
Kuldeep Pawar wherein the honorable Bombay High Court has observed
rashness implies unwarranted speed while act of negligence involves
not taking proper care and attention while driving. Thus, according to
the ld. Advocate for the accused the statement that vehicle was driven
at high speed need to be appreciated with available materials on record.
3. Before appreciating the evidence, we must understand the
meaning and scope of the term ‘Rash’ and ‘Negligent’. Whether a person
was driving rashly and negligently may not be always possible to be
determined with reference to the speed of a vehicle. Both these acts
presuppose an abnormal conduct. Even when one is driving a vehicle at
a slow speed but driven recklessly and negligently, it would amount to
‘rash and negligent driving’ within the meaning of the language of
Section 279 IPC. That is why the legislature in its wisdom has used the
words ‘manner so rash or negligent as to endanger human life’. The
preliminary conditions, thus, are that (a) it is the manner in which the
vehicle is driven; (b) it be driven either rashly or negligently; and (c)
such rash or negligent driving should be such as to endanger human life
or personal safety of others. Once these ingredients are satisfied, the
penalty contemplated under Section 279 IPC is attracted.
4. ‘Negligence’ means omission to do something which a
reasonable and prudent person ordinarily guided by the considerations
(which ordinarily regulate human affairs) would do or doing something
which a prudent and reasonable person guided by similar
considerations would not do. Negligence is not an absolute term but is a
relative one; it is rather a comparative term. It is difficult to state with
precision any mathematically exact formula by which negligence or lack
of it can be infallibly measured in a given case. Whether there exists
-- 3 of 7 --
(Judgment) 4 C. C. NO. 1114/PS/2018
negligence per se or the course of conduct amounts to negligence will
normally depend upon the attending and surrounding facts and
circumstances which have to be taken into consideration by the Court.
In a given case, even not doing what one was ought to do can constitute
negligence.
5. The Court has to adopt another parameter, i.e., ‘reasonable
care’ in determining the question of negligence or contributory
negligence. The doctrine of reasonable care imposes an obligation or a
duty upon a person (for example a driver) to care for the pedestrian on
the road and this duty attains a higher degree when the pedestrian
happens to be children of tender years. It is axiomatic to say that while
driving a vehicle on a public way, there is an implicit duty cast on the
drivers to see that their driving does not endanger the life of the right
users of the road, may be either vehicular users or pedestrians. They are
expected to take sufficient care to avoid danger to others. Thus, rash
and negligent driving has to be examined in light of the facts and
circumstances of a given case. This fact being incapable of being
construed in isolation, it must be examined in light of the attendant
circumstances.
6. The Informant Amzad Ali Sheik PW2 is a hearsay witness
who lodged the report (Exh. 7) after seeing the injured at hospital and
he has received the news of accident on a phone call by his brother
Hamas Ali Mumtaz Ali Shailh.
7. Asif Iqbal Turak (PW1) number states that he’s having a
shop of ceramic at SV Rd and he further states that on 29/08/2016 at
about 6:30 PM when Abdul Hai was standing with his handcart near his
shop, he was dashed by a motorcycle which came at a high speed and
-- 4 of 7 --
(Judgment) 5 C. C. NO. 1114/PS/2018
the motorcycle was make of Aapachi bearing MH2058.
8. During his cross examination he states that Abdul Hai was
standing in front of ‘A1 Enterprises Shop’ which is located in between
‘Western Timber Shop’ and ‘Shifa Traders Shop’. However, when he was
confronted with Spot Panchanama he was unable comment whether it
was drawn correctly. He has refused to comment on suggestion that the
accident took in front of ‘Shifa Traders shop’ while Abdul Hai was
crossing the road.
9. Asif Iqbal Turak (PW-1) is the only eye witness examined by
the prosecution. The contents in spot panchanama (Exh. 9) reveal that
on 31.08.2016 the place of occurrence was shown to investigation
officer by one Haridwar Prasad Shukla Age-35 years working as Hamaal
at ‘A1 Enterprises Shop’ was the coworker of deceased Abdul Hai and he
has witnessed the accident. However, neither said person is cited as
witness nor he was summoned by the prosecution. Amjad Ali Shaikh
(PW-2) states that his brother-in-law Hasmat Ali has informed him the
RTO number of vehicle involved in accident. He is also not cited as
witnesses and the prosecution did not record his testimony.
10. It’s the prosecution case that the Apachi rider did not stop
after accident. Asif Iqbal Turak (PW-1) has stated in his examination-in-
chief that accused Bhushan Survey present in court has caused this
accident but, during cross-examination he has stated that he did not see
the accused after accident. His testimony does not disclose the identity
of vehicle involved in accident. In such circumstances, non-examination
of eye witnesses Haridwar Prasad Shukla and Hasmat Ali by the
prosecution is fatal to its case. In other words, statement of Asif Iqbal
Turak (PW-1) that the accused Bhushan Survey was riding the motor
-- 5 of 7 --
(Judgment) 6 C. C. NO. 1114/PS/2018
bike involved in accident does not seem to be cogent and convincing.
The investigating officer has arrested accused only and only on the basis
of RTO number of vehicle mentioned in FIR but, the person who has
informed said RTO number to the informant is not examined. Further,
none of the eye witness has identified the accused as rider of said
Apachi during the course of investigation. The RTO inspection report
(Exh. 10) in respect of Apachi motor bike bearing No. MH-02 /EJ2058
shows that its indicator was broken due to impact but, said examination
was done on 06/9/2016 i.e., after 6 days of alleged accident when
accused was arrested. Therefore, failure of prosecution in examining the
eye witness to establish the identity of accused render the RTO Vehicle
examination report as worthless.
11. The reason being that there is no convincing evidence on
record to show that the identity of Apachi motor bike involved in
accident and that accused before the court was driving said Apachi Bike
allegedly involved in accident. The prosecution has failed to establish
the chain of circumstances showing that the accident took place as
Apachi motor bike bearing No. MH-02/EJ2058 was involved in accident
where Abdul Hai was hit and that the accused before the court was
driving the vehicle. Though it was argued that the accused do not
dispute his involvement in the occurrence of accident but, there is no
clear evidence of negligence. There may be argument that the high-
speed driving and hitting a person who stood by his handcart at road
side amounts to rash driving but, there is no clear evidence of rash
driving too.
12. The only eye witness Asif Turak (PW-1) on one hand says
that Abdul Hai was standing in front of his shop but, he refused to
-- 6 of 7 --
(Judgment) 7 C. C. NO. 1114/PS/2018
comment on correctness of spot Pachamama. The exact place of
occurrence is the crux of matter but, there is no concerte evidence in
that regard. The other eye-witnesses and mainly the person who has
shown the place of occurrence is not examined by the prosecution
which renders the prosecution case doubtful. Consequently, there is no
iota of evidence to prove that the accused has caused death of Abdul
Hai by driving either rashly or negligently Apachi motorbike bearing
No. MH02/EJ 2058 and failed to inform police or provide medical aid
to deceased. I thus, record my findings to point Nos. 1 to 3 in the
negative. The accused is entitled to be acquitted.
ORDER
1 Accused Bhushan Ashok Surve is acquitted of the offence punishable
under Sections 279, 338, 304-A of IPC r/w 134(a)(b), 180 of M.V.
Act vide Section 255 (1) of the Code of Criminal Procedure.
2 Bail bond of accused stands cancelled and they be set at liberty.
3 Accused shall furnish bond of Rs.10,000/- under Section 437(A) of
the Code of Criminal Procedure.
Mumbai.
Date :- 01/01/2026.
Dictated on : 01/01/2026
Transcribed on : 01/01/2026
Signed on : 01/01/2026
(S.G.Agrawal)
Judicial Magistrate First Class,
10th Court, Andheri, Mumbai.
-- 7 of 7 --